Apex court strives to untangle legal process around passive euthanasia

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New Delhi

To die with dignity is a right of those who are terminally ill and have made a living will, a Supreme Court Constitution bench observed on Tuesday as it set about to untangle the “cumbersome” legal process impeding the execution of passive euthanasia, and provide a definite timeline for medical experts to take a call.

“After this court has recognised the right to die with dignity as a fundamental right and a facet of Article 21 (right to life), let’s not make it very cumbersome…the idea is to make the judgment workable,” said the bench, headed by justice KM Joseph.

The bench, which also included justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, noted that the 2018 judgment that laid down guidelines in recognition of living wills made by terminally ill patients need a “little tweaking”.

“The present guidelines are cumbersome and they need to be simplified. But we have to have sufficient safeguards so that they are not misused,” emphasised the bench, as it heard a plea demanding modifications in the 2018 judgment as regards the guidelines to be followed before withdrawal of treatment essential to life.

Under the 2018 judgment, an adult can make a living will, which should be signed in the presence of two attesting witnesses and affirmed by the concerned judicial magistrate. If the executor of the will becomes terminally ill and goes through prolonged medical treatment with no hope of recovery, the doctor has to constitute a board consisting of experts of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care on the request of family members.

After the certification of the first medical board, the district collector concerned constitutes another board of medical experts. Following the consent of the second medical board, the last call is taken by the magistrate concerned. If the hospital’s medical board denies permission to withdraw medical treatment, the family members of the patient can approach high court, which forms a fresh board of medical experts to enable the court take a final call.

The plea, argued by senior counsel Arvind Datar and advocate Prashant Bhushan on behalf of the petitioners, contended that the three-step process encompassing onerous conditions has made the entire judgment nugatory, and that there has not been a single case where someone desirous of exercising the right to passive euthanasia could finally comply with the procedural requirements.

The bench acknowledged that the process needs to be simplified. “We may have to tweak it by a bit… but at the same time, we have to be very careful. We cannot be devaluing a life in this process. Doctors are also not Gods who can predict with absolute certainty. They are more like weatherman. They go by science…We, we are neither experts in medical science nor do we have the expertise like the legislature. Since we are here to improve the guidelines already prescribed, we have to be careful,” said the court.

About the two-tier process for approving the execution of a living will for withdrawal of medical treatment or a life support system, the five-judge bench said that while the system served a purpose, it could speed up the process.

“The two-tier system is there for a purpose, especially when you are taking away the live of a man that is very precious, more than his priorities. The two medical boards do serve a purpose. The only thing we can do is to set a timeline…time is an essence in such a case where the patient is on a life support system,” said the court, adding the “whole purpose (of the judgment) will be defeated if the process keeps dragging on”.

At one point, it grilled additional solicitor general KM Nataraj about the status of the legislation on the matter, reminding him that the 2018 judgment clearly maintained that the guidelines laid down by it shall remain in force till a legislation is brought on the issue.

“Is there a thought of a legislation in this area as almost five years have gone by? Is it essentially not a legislative function? Why should we be called upon to do this? And if you agree this is a legislative function, what have you done about it?” it asked the law officer.

Nataraj, on his part, agreed that the subject matter involves legislative function as he sought some time to revert with a definite answer on the status of a law.

The bench adjourned the case for Wednesday, asking all the lawyers to come prepared with a common draft of guidelines that the court may consider while modifying the 2018 judgment.

In March 2018, a Constitution bench recognised a person’s right to die with dignity, saying that a terminally ill person can opt for passive euthanasia and execute a living will to refuse medical treatment. It permitted an individual to draft a living will specifying that she or he will not be put on life support if they slip into an incurable coma.

The five-judge bench in 2018 included the present CJI Dhananjaya Y Chandrachud, who, in his separate judgment, said: “Dignity in the process of dying is as much a part of the right to life under Article 21. To deprive an individual of dignity towards the end of life is to deprive the individual of a meaningful existence.”


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